LESSON 6: COMPUTERS AND PRIVACY

WORDS AND PHRASES TO REMEMBER

• Constitutional foundation
• Wikileak case
• regulatory system
• lovebug virus
• Cyberspace
• E-Commerce Law
• obligation of confidentiality
• A.O. 308
• intellectual property rights
• reasonable expectation of privacy

LECTURE AND DISCUSSION

introduction
The Information and Communication Technology (ICT) revolution of
the last two decades continues to impact on citizens, particularly those
engaged in media practice. For the first time in the history of humanity,
information is at the tip of the fingers of everyone regardless of education,
sex, or station in life. With information about almost everything and
everyone in the world accessible to almost anyone, concepts about
intellectual property rights and information rights are continually being
challenged. Even state secrets are not secure from massive and irrevocable
dissemination in cyberspace. Even as state rights are now being discussed in
the wake of the Wikileak case, the rights of the individual are also being
challenged.

In her treatise entitled ―The Constitutional Foundation of Privacy,‖

Justice Irene Cortes, the first female dean of the UP College of Law,
cautioned on threats arising from computerization, particularly violations
against the individual‘s right to privacy. She argues:

The computer age is upon us. . . the need to provide protection

to individual privacy . . . will have to be met. . . To meet the
threat which computerization poses there is need to provide a
regulatory system which while protecting individual privacy will
 not hamper the march of progress represented by the versatile
machines” (Kabatay and Teodoro, p. 245).

Thirty years and a lovebug virus after, the first Philippine Law on
Cyberspace was passed. While the limits and scope of the law is still being
defined in the courts, some legal doctrines have already been formulated
and promulgated.

Discussion
In response to the radically changed information environment,
government has passed Republic Act No. 8792, the E-Commerce Law on
June 14, 2000, providing for the Recognition and Use of Electronic
Commercial and Non-Commercial Transactions, Penalties for Unlawful Use
Thereof and Other Purposes. The law was passed in the wake of the global
havoc perpetrated by the lovebug virus developed by a student of the AMA
Computer College. Hard as it was for our legislators to imagine, crimes can
be committed in cyberspace and somebody has to be held accountable.
Foremost among the liabilities relating to computers is the invasion of
individual privacy. Section 32 of the E-Commerce Law provides for the
protection of the privacy of individuals as thus:

Obligation of Confidentiality. Except for the purposes authorized under

this Act, any person who obtained access to any electronic key, electronic
data message or electronic document, book, register, correspondence,
information, or other material pursuant to any powers conferred under this
Act, shall not convey to or share the same with any other person.

In line with this, government is mandated to declare as state policy

the following as it refers to the Protection of Users. The protection of users,
in particular with regard to privacy, confidentiality, anonymity, and content
control shall be pursued through policies driven by choice, individual
empowerment, industry-led solutions. It shall be in accordance with
applicable laws. Subject to such laws, business should make available to
consumers and, where appropriate, business users the means to exercise
choice with respect to privacy, confidentiality, content control and, under
appropriate circumstances, anonymity.
 The first Philippine jurisprudence on privacy and the computer was laid
down in the case of Ople vs Torres on July 23, 1998. In this case, then
Senator Blas Ople sought the nullification of then President Fidel V. Ramos‘
Administrative Order No. 308 of December 12, 1996, ordering the adoption
of a National Computerized Identification Reference System on two
constitutional grounds: (1) that the A.O. was a usurpation of the power of
Congress to legislate, and (2) It intrudes on the citizenry‘s protected zone of
privacy.

The Court ruled in favor of Ople on the grounds that A.O. 308
“establishes for the first time a National Computerized Identification
Reference System (that)… requires a delicate adjustment of various
contending state policies…” that would require an enactment of a law.

On the issue of breach of citizen‘s right to privacy, the Court explained

that “our present laws do not provide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act No. 591 penalizes the disclosure
by any person of data furnished by the individual to the National Statistics
Office (NSO) with imprisonment and fine. Republic Act No. 1161 prohibits
public disclosure of the Social Security System (SSS) employment records
and reports” (Kabatay and Teodoro, p. 251). The reasonable expectation of
privacy doctrine may undergo two tests before it can be established:
1. Whether the individual, by his conduct, has exhibited an expectation of
privacy; and
2. Whether this expectation is one that society recognizes as reasonable.
While the facts of the case may determine the reasonableness of
expectation to privacy, other factors such as customs, physical surroundings,
and popular practices may serve or diminish this expectation.

In conclusion, the Court ruled: “The right to privacy is one of the most
threatened rights of man living in a mass society. The threats emanate from
various sources – government, journalists, employers, social scientists, etc.”
A.O. 308 “was declared null and void for being unconstitutional due to its
impermissible intrusion into the citizenry‘s protected zone of privacy”. (Ibid,
p. 252)
Summary
Two legal doctrines have been promulgated attendant to the e-
Commerce Law:
1. The right to privacy has a constitutional foundation; and
2. The violation to the individual‘s right to privacy may be established
under the reasonable expectation of privacy doctrine.

The right to privacy, having constitutional foundation, should be

safeguarded as the nation and an increasing number of its citizens begin to
live as much of their lives, relationships, and business in cyberspace as on
terra firma. The first challenge to the citizen‘s right to privacy in cyberspace
has been won in favor of the champions of the constitutional rights to
privacy.

However, the real measure of what is reasonable expectation of

privacy, given the speed of ITC development and the emergence of new
crimes that defy borders, will eventually have to be re-defined, meaning
that: “While the threat to the right to privacy of citizens is fully recognized,
the forms which these intrusions will take will have to wait for the test of
time and the citizen‘s perception of what constitute ―reasonable expectation
of privacy”

REFERENCES
• Administrative Order No. 308
• Republic Act No. 8792 or the E-Commerce Law dated June, 2000 Look
up pertinent sections of books listed in your Course Guide.